@Diamondpr wrote:
Just for clarification...My ex is entitled to claim our son this year per court, he didn't once exercise his rights. Ex was absent for the whole year. If he decided to claim, which I'm sure he will, he will be able to file our son by providing proof of court order?
You have to ask the court to deal with that. Under IRS regulations, if your ex has a pre-2009 divorce order that says he can claim a dependent, then he can claim the dependent. You must ask the court to modify the order.
Specifically, the order must say 3 things:
1. that your ex can claim a child in specified years
2. that you won't claim the child in those years
3. there can be no conditions in the order. If the order has conditions, such as the ex must see the child a certain number of days, or that child support must be current, then the order is invalid for claiming a child as a dependent even if those conditions have been fulfilled.
In Turbotax or a similar program, your ex would indicate that the child lived with him less than half the year, and that he is claiming the child as a dependent using a form 8332 dependent release or a pre-2009 divorce order. He is entitled to the $2000 child tax credit or the $500 other dependent credit, depending on the child's age. This year, he would also be entitled to a stimulus rebate. However, you can still list the child on your return as they may qualify you to file as head of household or earned income credit, if you meet the other requirements for those benefits. You would indicate the child lived with you more than half the year but the other parent is claiming the credit using a form 8332 or a pre-2009 divorce order. (The ability to use a child for head of household or EIC always goes to the parent who has actual physical custody more than half the year and can't be waived, transferred or shared.)
Your ex will be required to mail a copy of the divorce decree to the IRS after e-filing the rest of their return.
Now, one more thing since we are talking about a 15 year old divorce -- once the child turns 18, the agreement can't be used to claim the child as a dependent. All the "special rules for children of divorced or separated parents" end when the child turns 18, or is legally emancipated under state law if it happens at a different age. From that point, only the normal rules apply, which means the parent where the child lives is the only one who can claim them as a dependent, assuming the child meets the other qualifications of age, full time student status, and support.
